When the applicant filled in her intended address on these incoming passenger cards, she understood the question to be asking about her immediate accommodation rather than her PPR. In any event, on 19 of the 25 incoming passenger cards, being 76%, the applicant listed the Sydney Property as her intended address and on the only two cards where she provided a contact address, the address of the Sydney Property was provided."
63The evidence discloses 24 incoming passenger cards covering the period from 14 July 2007 to 25 January 2011. Of these 19 refer to the Sydney Property as the intended address of the Applicant in Australia. The Applicant stated at [221]:
"...The incoming passenger card asks for "intended address in Australia". I did not read this question as a question about my principle (sic) place of residence, rather a question of where I was going to be either immediately or shortly after disembarking the vessel and for no specified period of time."
64The Applicant's expressed intention did not accord with her action. Stating that her intended address in Australia in incoming passenger cards was the Sydney Property does not assist the Applicant. The Location Diary shows that on only 3 of the 19 occasions on which the Applicant listed the Sydney Property as the place where she was going to be immediately or shortly after disembarking did she actually stay at the Sydney Property for at least one night.
65The Respondent referred to public statements by the Applicant as to the place she regarded as her real home. In giving the 19th Eric Johnston Lecture in 2005 the Applicant said:
"I'm a Territorian, and more precisely a Darwinite. Let me give you a brief summary of my connection with this town.
I attended both primary school and high school in Darwin from 1956 to 1968. After studying at the University of NSW and then living in mining towns in Western Australia for several years, I returned to Darwin in 1976 and successfully applied for the position of Executive Director of the Keep Australia Beautiful Council, a rather busy job if you remember post-Tracey Darwin. ...
After a brief absence from Darwin in 1978, I returned once again, this time to work as an announcer and presenter on ABC Radio and television. ...
I also joined my family company, Paspaley Pearling Company, in 1988 to open the doors of the first Paspaley Pearls Boutique in Broome, Western Australia.
Moving between Broome, Melbourne and finally Sydney, I carried on the two professions of general manager of retail and actress until I left my acting profession in 1996 to focus entirely on the development of the retail division.
This led to my return to Darin (sic) in 1997 and I have made this my base ever since, despite a hectic domestic and international travel schedule. (emphasis added)"
The applicant concluded that lecture by saying, of Darwin's spirit, 'It is unique. It is what brings me home.'
66The Applicant's written response to the Respondent's submissions is at [89]:
"The RS emphasise the empirical value of articles written about, and speeches given by, the applicant in determining the applicant's PPR ([6]-[9]). Such emphasis is misconceived. Articles written by journalists are necessarily not written by the applicant and are not demonstrative of either the applicant's subjective intention as to her PPR or any objective reality. The speeches given by the applicant which the respondent references were given in a business context by a non-lawyer where the underlying purpose of the speeches did not relate to taxation. In these circumstances, any references made to having a connection with one place or another are not determinative, nor even informative, when considering whether the applicant has satisfied the statutory definition for the grant of the PPR exemption."
67In response the Respondent said at [16] in RS2:
"The eighth issue concerns paragraph [89] of the applicant's submissions, at which a challenge is made to the respondent's reliance on the applicant's public statements. It is said there that 'The speeches given by the applicant which the respondent references were given in a business context by a non-lawyer where the underlying purpose of the speeches did not relate to taxation.' This is why the Tribunal would accept them as truthful. There was no taxation motive; no desire for a particular outcome driving the comments. If not true they would not have been made to a large audience. As with the authorities concerning expert evidence under s 79 of the Evidence Act 1995,4 which permit opinion from a party where it predates any suggestion of litigation, the Tribunal would rely on the untainted and motive-free statements the applicant voluntarily made."
68Ms Ensor relied on the decision of the Court of Appeal in Ghali v CCSR [2013] NSWCA 340. In that matter the Court of Appeal dismissed an appeal from the Appeal Panel of the ADT which had upheld an appeal by the Chief Commissioner from a decision in favour of Mr Ghali by a single member of the ADT.
69The facts found by the single member and apparently not disputed in either of the appeal cases were that Mr and Mrs Ghali purchased and lived together at a property at Harold Avenue, Pennant Hills (Harold Avenue). Mr and Mrs Ghali separated and shortly thereafter Mr Ghali purchased a property at Beecroft Road, Pennant Hills (Beecroft Road). It was Beecroft Road which was the subject of the land tax dispute.
70After purchasing Beecroft Road Mr Ghali occupied that property as his home. Mrs Ghali continued to occupy the former matrimonial home in Harold Avenue. Some time later Mrs Ghali asked Mr Ghali if he would renovate Harold Avenue in the way he had renovated Beecroft Road. Mr Ghali agreed. Mrs Ghali moved from Harold Avenue into Beecroft Road together with all her furniture and Mr Ghali moved into Harold Avenue. His only furnishings at Beecroft Road were a bed a kitchen table, clothes, toiletries and bed linen.
71The renovations took over six years to complete including the period relevant to the land tax dispute. At the end of the period Mr Ghali moved back into Beecroft Road and Mrs Ghali moved back to Harold Avenue.
72During the renovation period Mr and Mrs Ghali swapped residences twice each year. This occurred for about three weeks from 20 December to 10 January and for about the same period of time from mid-July to early August. Mr Ghali's explanation was that he wished to celebrate with members of his faith and entertain his friends at Beecroft Road at Christmas and on the anniversary of his purchase of Beecroft Road.
73In the course of his judgment Basten JA, with whom Tobias AJA and McDougall JA agreed, said at [44]:
"The Appeal Panel also addressed the use made by the Tribunal of the "subjective intention of the taxpayer", stating:
36The other grounds mainly went to the issue of the extent of reliance the Tribunal placed on the subjective intention of the taxpayer. The case-law has acknowledged the relevance of subjective intention 'objectively ascertained' to the question of whether a place of occupation is a 'residence' and whether it can be regarded as the 'principal place of residence'...
37The Tribunal gave considerable emphasis to the respondent's long term intentions. It accepted the respondent's evidence that his intention was to return to live at Beecroft Road on a full-time basis once the renovations at Harold Avenue had been completed.
38The focus of the legislation is the living circumstances of those claiming the exemption in the relevant period. As this is an annualised tax system the focus is the circumstances on the taxing date, as reasonably informed by the period surrounding it on either side (see, for example, Gregory per Dixon J at 778 ('events which occurred before and after a given period may be considered as throwing light on and disclosing the significance of habits and conduct within the period').
39Here the taxpayer left Beecroft Road around 2001 and was away for six years. His future intention to return to Beecroft Road involving such a distance in time should not, we consider, have been taken into account in the away that it was."
74The Court of Appeal said at [34] "an intention to use and occupy land in the future does not by itself demonstrate present physical use and occupation." The court also said:
"12. Two facts on which the case turned were ultimately not controversial. First, the appellant divided his time in each year between Harold Avenue and Beecroft Road, spending 42 weeks in the former and six weeks in the latter. Secondly, he in fact lived primarily in Harold Avenue for some seven years for the purpose of carrying out renovations, with the intention that he would ultimately return to Beecroft Road and his estranged wife would then move to Harold Avenue."
45. Subjective intentions can indicate the nature or quality of activities carried out on the land: however, intentions as to the future will not overcome the absence of physical use and occupation in the relevant tax year. The Appeal Panel identified an error of law on the part of the Tribunal, by placing the use of future intentions into the proper statutory context. It did not deny that subjective intentions could be permissible considerations: it merely denied that intentions as to future use could, in the circumstances of this case, render that which was not use and occupation of the land to be use and occupation of the land as the appellant's residence in the particular tax years: cf Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [9]-[10]. In this the Appeal Panel was correct.
46. To have a present intention to use and occupy Beecroft Road in the future was not inconsistent with a present intention to reside at Harold Avenue, where he in fact resided in the taxation years."
75It may well be that it was the intention of the Applicant both prior to and during at least part of the Relevant Period that she and her husband would at some time in the future use and occupy the Sydney Property as their principal place of residence. The importance of the expressed intention of the Applicant for the purpose of these proceedings is to be contrasted with the other evidence including her public statement in the Erick Johnston lecture in 2005, prior to the commencement of the land tax dispute, and the actual use she made of the Sydney Property during the Relevant Period. I find that from some time in 1997 until some time after she became aware of the relevant investigation by the Chief Commissioner in October 2011 the Applicant did not convert her expressed intention into fact in that she principally resided in locations other than the Sydney Property.
76As the Court of Appeal said in Ghali at [45] "intentions as to the future will not overcome the absence of physical use and occupation in the relevant tax year". I find that the "physical use and occupation" must be for the purpose of using and occupying the relevant property as not only a residence but as the Applicant's principal place of residence.
77I refer to Ms Ensor's submission at [53] that the Applicant has not claimed a principal place of residence exemption for any other property since moving into the Sydney Property (in about 1991 or 1992). I note that the only properties owned and used as a residence by the Applicant since that time were the Marina Property and the CBC Property. Both these properties are located in the Northern Territory. I agree with Mr Bennett's comment in [15] "that the applicant has not claimed a PPR exemption for any other property is of no moment; land tax is not applicable in the Northern Territory, and neither of the Broome properties were owned by the applicant."
The fourth Ferrington factor - to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
78Ms Ensor submitted at [58]:
"The Sydney Property was owned by the applicant for over 20 years and could not reasonably be characterised as transient or passing in nature. Further, the applicant's occupation of the Sydney Property was solely for the purpose of being the applicant's PPR. At no stage was the Sydney Property tenanted."
79The Respondent did not dispute the ownership of the Sydney Property from 1991 until November 2012. Nor did the Respondent submit that the Sydney Property was tenanted or otherwise used for income producing purposes. However the Respondent submitted that the use of the Sydney Property during the Relevant Period was to remain vacant for other than limited use in the Australian summer season for up to 1 month while the Applicant had ample use and occupation of the Marina Bay Property and the CBC Property and used the Sydney Property as a convenient place to stay while in Sydney on business or in transit. Mr Bennett submitted at [38(c)] that the use was not for the purpose of a personal residence but was "more akin to a sporadically visited holiday home".
80The Applicant at [242] described the Sydney Property as:
"a gracious and historic home built in 1908 with 5-bedrooms, 4-bathrooms plus guest bathroom, a large open plan kitchen and family dining room & lounge, formal sitting room, formal dining room, large study/bedroom. It has a large outdoor paved area at the rear of the home and a very small lawn area at the front of the home. Cooking appliances are both gas and electric. Water heating is gas. Room heating is by gas.."
81At [92] and [94] she said:
"At all times between 1990 and 2012, New Beach Road was our treasured family home, where we entertained our friends, held our important celebrations and where we could accommodate family and friends who came to visit. This lifestyle and these events did not occur anywhere else in our lives."
"My wedding gifts and all family treasures were held in our family home. It took me many years to decorate it, through the collection of valuable antiques and artworks."
82I find that the Applicant's evidence including the Daily Calendar in MP1 and the Location Diary as to the use to which the Sydney Property was put, from 1997 and throughout the Relevant Period until at least 19 December 2011, is consistent with use as a showplace or trophy home used for entertainment and relaxation during the summer holidays, as a place for occasional special events such as her 60th birthday celebration, as a stopover place while in Sydney on business or in transit and as an occasional residence. By itself that usage is not conclusive evidence that the Sydney Property was used as the Applicant's principal place of residence.
The fifth Ferrington factor - the short length of a person's residence, while relevant, is not determinative of the issue. ... occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence.
83There is no dispute as to the lengthy period of ownership and control of access to the Sydney Property. The duration and nature of the use during the Relevant Period is dealt with elsewhere in this decision.
The sixth Ferrington factor - the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances ...
84Ms Ensor submitted at [59]:
"The applicant's reasons for departure from the Sydney Property were both reasonable and adequately explained when considered objectively in the light of her personal circumstances. The applicant's reasons for not residing at the Sydney Property were, to a large degree, out of her control due to her vast number of business commitments which required her presence in numerous locations, including many outside of Sydney."
85Mr Bennett responded in RS2 at [14]:
"...the applicant's submission at [59] appears to be premised on the unsupported contention that the applicant departed the Sydney Property from around 2006 onwards for reasons out of her control, namely, to pursue her myriad business interests. This submission is ill-conceived for two reasons. First, the applicant's business interests cannot properly be characterised as matters outside her control; the evidence reveals that the applicant made a number of deliberate decisions to pursue a range of opportunities in Northern Australia, primarily in the accommodation sphere. Second, the applicant did not depart the Sydney Property to do so. As is revealed by the table at [49] of her submissions, ...., the applicant was living at the Cullen Bay Crescent property prior to her move to Broome."
86Ms Ensor made submissions at [40] in respect of continuity and the reasonableness of the Applicant's departure from the Sydney Property:
"Continuous physical presence on the property is not required to constitute continuous occupation provided the taxpayer retains the right to controlled possession. In Flaracos v CCSR 2003 ATC 4348 Gzell J stated at [29]:
In my opinion continuous physical presence on the land is not required to constitute continuous occupation. If a person leaves his or her premises for a holiday, it would defeat the purpose of the Act to conclude that occupation had ceased to be continuous. So long as the person retains the right to possession and controls possession, that person remains in occupation, in my view. The observation of Sir Nigel Bowen in Christie that physical presence over all the land is not necessary to establish occupation is equally apposite when there is some hiatus in physical presence over time.
87Flaracos concerned a taxpayer seeking an exemption from the imposition of land tax on his home on the basis that, since before the first day of July that last preceded the commencement of the relevant tax year, the relevant land had been continuously used and occupied by him for residential purposes and for no other purpose or the Chief Commissioner should be satisfied that the relevant land had been used and occupied by him as his principal place of residence.
88The evidence before Gzell J was to the effect that the taxpayer lived in his home and rented part of it for periods to provide some money because he was unemployed. The evidence was that renting the house was always temporary. The taxpayer slept at the home for security. He left the home at times and lived in cheap accommodation while looking for work, on occasions for 2 - 3 months at a time. He also went on holidays on occasions and rented the home on some of those occasions. On each occasion that the taxpayer left the home he returned to it to resume his physical presence. His Honour found at [23] that the home "was used as his sole and therefore, his principal place of residence".
89The Applicant said at [88]:
"Basically, I was an itinerant, travelling from place to place specifically to perform my work and the duties for which I was responsible. I travelled wherever I was required in order to fulfill my various responsibilities for .... These trips were of varying duration, according to the requirement or task to be performed by me. These trips included trips to Darwin, Broome, Perth, Brisbane as well as overseas"
90The facts in Flaracos are substantially different to those in the current proceedings. The Applicant's own evidence is that in each tax year of the Relevant Period until calendar 2012 she resided at one or more of the properties owned or controlled by her for substantially longer periods than she spent at the Sydney Property.
91Ms Ensor submitted at [41] and [42]:
"...a person can be away from their PPR while maintaining that particular residence as their PPR. In Re CCSR and Ghali [2012] NSWADTAP 20 the Appeal Panel stated at [33]:
The cases dealing with the itinerant are instructive in this regard. It has long been recognised that the taxpayer may be involved in a calling or have other circumstances which take him or her away from their usual place of abode for extended periods, and that their sole or primary place of residence may be elsewhere...
The noun itinerant is defined in the Macquarie Online Dictionary as "someone who travels from place to place, especially for duty or business"
92Mr Bennett's response at [37] included completing the phrase in [33] on which Ms Ensor ended, the Appeal Panel said:
"...their sole or primary place of residence may be elsewhere (the usual example is the sailor on extended voyages, away from a permanent home on land):.... "
93Mr Bennett continued at [38] submitting:
(a)the applicant is not a sailor or itinerant - but a professional who set her life in Darwin from 1997;
(b)the applicant is not in Darwin on holiday - but in the Relevant Period was living her life there; and
(c)the Property itself is more akin to a sporadically visited holiday home. Notably, the only Christmas the applicant spent at the Property was in 2011 (after the applicant became aware of the Chief Commissioner's investigation).
94I observe that the end of [33] in Ghali and the start of [34] included the following:
"None of those cases carry the extra feature, present in this case, of the home itself being out of bounds to the itinerant for substantial periods of their absence.
34.Consequently, no arguable competing residences issue could in fact arise. His place of living - Harold Avenue - was for those weeks his place of residence on any reasonable view of the circumstances, albeit spartan. The fact that he returned to Beecroft Road for two limited periods in each year did not convert Beecroft Road into a residence in its ordinary sense."
95On the other hand Mr Bennett submitted that there are several properties owned or controlled by the Applicant which compete with the Sydney Property as the principal place of residence of the Applicant at different times during the Relevant Period.
96The Table of locations set out below shows that in each calendar year from 2006 to 2011 the Applicant slept for between 186 and 279 nights at a property owned either directly by her or by a company she controlled. The number of nights spent at the Sydney Property varied from 10% to 28% of the total nights spent at properties she or one of her companies owned or controlled. In 2012, after the investigation commenced, the Applicant slept at the Sydney Property for 84% of the 207 nights she spent at one or the other of her properties. However during the period 1 July 2011 to 31 December 2011, that is the 6 months immediately prior to the 2012 land tax year, the Applicant slept at the Sydney Property for 30 of the 184 nights. That is less than 17% of the time. Thirteen of the 30 nights were spent at the Sydney Property at the end of December 2011. I observe that the Applicant spent 116 nights of the 184 from 1 July to 31 December 2011 at the Hunter Property.